Saturday, February 6, 2010

Year 170: Review

Over the past month or so, I’ve posted a number of brief entries on this blog that consider the Treaty dimensions of a number of key issues that have arisen over the last year. As I noted in my very first post, it seems appropriate to me that 6 February should also be an opportunity, not only to recall the foundation of the Treaty relationship, but also to take stock of how well that relationship has been nurtured during the past 365 days. So, now that 6 February is here, I thought it might be useful to sum up with an overview of the 170th year of the Treaty of Waitangi.

In considering the health of the Treaty relationship, we should think about what that relationship entails. At the heart of the Treaty relationship sit the two grand concepts of ‘kawanatanga’ and ‘tino rangatiratanga’ – each embodying powerful elements of law-making and governing authority. There has been much debate about the precise meaning of each of these terms, but the essence of the Treaty agreement can be seen as the recognition of both the authority of the Crown (kawanatanga) and the authority of Māori (tino rangatiratanga). The courts and the Waitangi Tribunal have elaborated principles of the Treaty, which help to identify ways that the Treaty partners may fulfill that essential agreement. Many New Zealanders will have heard reference to the Treaty principles of partnership, good faith, reasonableness, co-operation, active protection of matters within the scope of the Treaty guarantees, and the duty to provide redress if Treaty obligations are breached.

Understood in those terms, we can see that the Treaty relationship has had something of a mixed year. There have been signs of promise and some encouraging symbols of a healthy Treaty relationship. Though, ultimately, it appears that symbolism has won out over substance in relation to Treaty issues during the last year.

The decision to fly a Māori flag at various official sites on Waitangi Day is one example of this symbolism over substance. No matter what Hone Harawira says, the flag that was chosen as a result of the consultation on the subject is popularly known as ‘the tino rangatiratanga flag’. This can be seen as symbolic recognition of the partnership and the rights that are confirmed in the Treaty of Waitangi. Which is good, as far as it goes. But without real movement towards recognising tino rangatiratanga, the flag issue begins to look like a bit of a distraction. Symbols are important, but they will not sustain a Treaty relationship for long without the substantive measures to back them up.

The symbolism of the Prime Minister’s statement that the Foreshore and Seabed Act will “likely” be repealed must be seen as good for the health of the Treaty relationship. And there might yet be some substantive progress on this issue too. The report of the panel appointed to review the Act, which found that the previous Government’s foreshore and seabed policy was “simply wrong in principle and approach”, could provide a sound foundation for such progress. Though no further action has been announced since the review panel reported over six months ago.

The transformation of local government in Auckland has been happening much more rapidly. Though there is little to be seen in the handling of this issue that is positive for the Treaty relationship. The Government’s decision to not provide for specific Māori representation as part of these hugely significant reforms, contrary to the Royal Commission’s recommendations, and in the face of numerous Select Committee submissions and significant protest action, did not reflect the kind of partnership envisaged by the Treaty. Neither, I would suggest, did the Government’s handling of the Rugby World Cup broadcasting rights issue. In that case, the Government intervened to promote the interests of other broadcasters at the expense of the Māori Television Service, an organisation that was established to make good on Treaty of Waitangi obligations.

But perhaps the state of the Treaty relationship is best typified by the amendments to the Emissions Trading Scheme. In order to secure the support of the Māori Party for these amendments, the Government agreed to a number of measures, including inserting a Treaty clause in the legislation and making provision for groups whose Treaty settlements will be adversely affected. It is absolutely right that the principles of the Treaty are acknowledged in this legislation and provision is made to protect the value of Treaty settlements. But this seems to have come at a huge cost. These changes to the ETS remove many of the incentives for large polluters to reduce their carbon emissions, which were originally part of the scheme. So, while the amendments provide some protection for particular Māori interests, the fundamental concept of tino rangatiratanga, which is so closely connected to relationships with the natural environment, is undermined because the health of the environment is itself undermined.

So it seems that there were some ups and downs for the Treaty in its 170th year. But, as always, the Treaty relationship gives us something to build on. Let’s keep that in mind as we head into the 171st year.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review